Guozhong Gao v. State ( 2019 )

Opinion issued November 26, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00806-CR
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GUOZHONG GAO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 3
Fort Bend County, Texas
Trial Court Case No. 16-CCR-187789
MEMORANDUM OPINION
Guozhong Gao was convicted by a jury of assault causing bodily injury family
violence, a class A misdemeanor. TEX. PENAL CODE § 22.01 (assault), § 22.01(b)
(misdemeanor). The trial court assessed punishment at 21 days in jail to be served
on weekends and a $3,000 fine. On appeal he complains that the jury should have
been instructed on self-defense, and therefore he should have a new trial. Gao did
not request the self-defense instruction nor did he object to its omission. We hold
that the trial court did not err in omitting this instruction.
Background
This case involves a fight between Gao and his wife, Dong Yan “Stephanie”
Zhang. On the evening of May 12, 2016, police responded to the couple’s house
after Stephanie messaged a friend to call the police. Gao had kicked and dragged
Stephanie across a room, and when the police arrived, he was blocking her way so
she could not leave the house. With no response to knocking on the door and hearing
fighting inside, the police broke a master bedroom window, separated Stephanie and
Gao, and arrested Gao.
At trial, the jury heard from two responding officers, Stephanie, and
Stephanie’s friend Jiaqi Yang.
A. Dong Yan “Stephanie” Yang’s Testimony
Stephanie testified that she met Gao on a Chinese dating website. They
communicated for several months before meeting in person in Shanghai in February
2014. In July 2015, Stephanie visited the United States. She believed that they would
travel the United States, but once she arrived, Gao told her he was too busy to travel.
He physically abused her during her trip, and she returned to China upon the
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expiration of her visitor visa. She rarely spoke to Gao when back in China, but he
continued to send her verbally abusive messages.
In December 2015, Stephanie returned to Houston to attend school. When she
arrived, Gao messaged her asking if she needed a ride from the airport or help finding
an apartment near the University of Houston. Stephanie decided to give Gao a
second chance. She moved into his house and eventually agreed to get a marriage
license. She believed that the license would allow them a probationary period of
three months before marriage. When they went to the courthouse to get the license,
Gao told the clerks that they wanted to get married immediately. Stephanie agreed
to marry him, but if he abused her again, she told him she would divorce him and
contemplate suicide.
In February 2016, Gao began abusing Stephanie again. Gao choked Stephanie
during an argument about moving to Louisiana. The next day, Stephanie called Jiaqi
Yang, Gao’s former coworker, whom she had met on a previous visit. Yang and her
husband visited Stephanie and observed bruises on her arm.
On the evening of May 12, 2016, Stephanie made Gao pancakes for dinner.
When the two were in their living room, she asked him about items she found in the
house that belonged to other women. She had recently discovered that he had lied to
her and had actually been married three times previously instead of only one time.
When she asked about his past, Gao became angry, pulled her off the couch, and
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threw her on the ground. Her head hit the carpet, and she was in pain. Gao kicked
Stephanie in the legs and hips multiple times, and she had bruises on her upper right
thigh. Stephanie tried to go to the master bedroom, but Gao followed her, pulled her
from the bed, and dragged her on the carpet back to the living room, burning her
back on the carpet. Stephanie went back to the master bedroom, messaged Yang to
call the police. She did not call 911 because in the past, Gao grabbed her phone when
he heard her talking on it, and she did not want to upset him.
Stephanie got her purse, turned her cell phone to record, put it in the purse,
and attempted to leave the house. Gao stopped Stephanie from leaving when she got
to a hallway. He held her arms, using his body to block her. He pushed her back into
the living room, causing her to fall. He kicked her lower body and put his foot on
her face. He tried to grab her purse, but the handle broke off. He yelled obscenities
at Stephanie and said she never respected him.
Stephanie escaped to the master bedroom and saw messages from Yang
saying the police were outside. Stephanie then heard someone loudly knocking on
the door. She grabbed her purse and went toward the door, but Gao stopped her in
the doorway of the master bedroom, preventing her from leaving. He held her arms
and pushed her back. Stephanie was crying and shouting. The police broke a window
in the master bedroom, separated Gao from Stephanie, and escorted them out of the
house.
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Stephanie refused to let the officer take pictures of her bruises. She did not
want the pictures to be taken because, at that time, she did not want Gao to go to jail.
The police arrested Gao that night, and Stephanie continued to have a relationship
with him.
Stephanie testified that she had attacked Gao with a water bottle, a stick, her
fists, and an object in her hands several times, but she maintained that all of these
attacks occurred after May 12, 2016. She testified that in July 2016, Gao falsely
accused her of trying to murder him. Around that time, she had an abortion, and in
September 2016, she moved out of the house. They divorced in March 2018.
B. Deputy W. Coleman’s Testimony
Deputy W. Coleman of the Fort Bend County Sheriff’s Office testified that he
was the first officer to arrive on the scene. Upon arriving, he knocked on the door,
but nobody answered. He knocked with increasing force using his fists, baton, and
flashlight, and he rang the doorbell for fifteen minutes. Once another deputy arrived,
they walked down the side of the house to the backyard. While on the side of the
house, Deputy Coleman heard a woman crying and a person getting hit by another
person’s fists. They knocked on the back door. They could not see anyone but they
heard an assault and a woman crying. They tried to open the back door but then
decided to break the window to the master bedroom.
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When the window broke, Deputy Coleman could hear a woman crying. Gao
was sweating and breathing heavily. Stephanie was in the master bedroom closet,
crying profusely. Based on the sounds he heard when trying to enter the house,
Deputy Coleman believed that a woman was being assaulted. He detained Gao, and
the other deputy assisted Stephanie.
C. Deputy W. Schoppe’s Testimony
Deputy W. Schoppe testified that he also responded to the domestic violence
call. As he approached the back of the house, he heard screaming and yelling and a
woman in distress. Deputy Schoppe found Stephanie on her knees in the master
bedroom crying hysterically. He took Stephanie to his patrol car. While she calmed
down, Deputy Schoppe spoke with Gao.
Gao initially told Deputy Schoppe that he and Stephanie had an argument
about his previous relationships. He said there was a lot of yelling but no fighting.
Gao told Deputy Schoppe that Stephanie tried to leave the house but he stopped her
because she was his wife and he did not know where she was going. Gao eventually
admitted that there may have been some bodily contact between him and Stephanie.
He also told the deputy that he was sitting on the couch when they were trying to
enter the house, but through investigation, Deputy Schoppe found that to be false.
Gao did not tell Deputy Schoppe that he had any injuries. Deputy Schoppe testified
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that he had probable cause to arrest Gao for unlawful restraint and assault family
violence. Gao was arrested that evening.
Deputy Schoppe then returned to speak with Stephanie. Stephanie would not
allow law enforcement to take pictures of her injuries, but he saw bruises on her
body. She claimed they were from a previous incident. The jury heard an audio
recording of Deputy Schoppe’s discussions with both Gao and Stephanie.
D. Jiaqi Yang’s Testimony
Jiaqi Yang also testified. She said that in February 2016, Stephanie told her
that she was being abused. Stephanie sent Yang a text message, and Yang responded
by phone and visited Stephanie’s house to check on her. Stephanie confided in Yang
about physical abuse a few more times and showed Yang photos of her injuries from
her husband. On May 12, 2016, Stephanie contacted Yang via a messaging
application on her cell phone to request that Yang call the police. Yang was unaware
of the specific reason why Stephanie needed the police, but based on the past, she
feared something may have been happening to her. Yang called the police. About
thirty minutes later, the police called Yang to request that she contact Stephanie. The
dispatcher told Yang that the police were not getting a response and were unable to
make it inside. On the return call, police requested that Yang tell Stephanie to scream
so that the police knew they were at the right house. Dispatch followed up with Yang
shortly after and informed her that they were able to get inside the house.
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Stephanie later told Yang about what happened in May 2016 and her account
was consistent with the text messages she had sent requesting the police be called.
After that incident, Yang was concerned for Stephanie’s safety. She testified that she
knew of several times where Gao became abusive toward Stephanie but that she
never called the police.
The jury found Gao guilty of assault causing bodily injury family violence,
and the trial court sentenced him to 21 days in jail to be served on weekends and a
$3,000 fine. This appeal followed.
The Jury Charge
Gao’s sole issue on appeal is that the jury charge was erroneous and harmful.
He complains that the jury charge should have included an instruction on self-
defense, and the omission was egregiously harmful.
Gao neither requested a self-defense instruction nor objected to the omission
of the instruction from the charge. He argues that the omission comprises egregious
harm as set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984),
and therefore requires reversal. When a party contends that the trial court erred in its
charge to the jury, we must determine whether the charge was erroneous, and if so,
whether the error was harmful under the appropriate harm-analysis standard. Celis
v. State, 416 S.W.3d 419, 423 & n.3. (Tex. Crim. App. 2013).
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A. The jury charge was not erroneous.
The trial judge is “ultimately responsible for the accuracy of the jury charge
and accompanying instructions.” Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim.
App. 2007). Article 36.14 states: “[T]he judge shall, before the argument begins,
deliver to the jury, except in pleas of guilty, where a jury has been waived, a written
charge distinctly setting forth the law applicable to the case.” TEX. CODE CRIM.
PROC. art. 36.14. The trial judge has the duty to instruct the jury on the law applicable
to the case even if defense counsel fails to object to inclusions or exclusions in the
charge. Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011).
Self-defense is a defensive issue. Gamino v. State, 537 S.W.3d 507, 511 (Tex.
Crim. App. 2017). A defensive issue is not “applicable to the case” unless the
defendant timely requests the issue or objects to the omission of the issue in the jury
charge. Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007) (“Defensive
instructions must be requested in order to be considered applicable law of the case
requiring submission to the jury.”); see Posey v. State, 966 S.W.2d 57, 63 (Tex.
Crim. App. 1998). Defensive issues are treated differently because they involve
strategic decisions and tactics generally left to the defense lawyer and the client.
Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007); Posey, 966 S.W.2d
at 62. A defendant may decide it would be better trial strategy to forgo a possible
instruction that contradicts the defendant’s theory of the case. Posey, 966 S.W.2d at
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63. Thus, even when it is raised by the evidence, the trial court has no duty to instruct
the jury on an unrequested defensive issue. Posey, 966 S.W.2d at 62; Jackson v.
State, 288 S.W.3d 60, 63 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).
Gao did not request a self-defense instruction, and he did not object to the jury
charge. The trial court has no duty under article 36.14 to sua sponte instruct the jury
on unrequested defensive issues. Posey, 966 S.W.2d at 62–63 (a defensive issue is
not applicable to the case under article 36.14 unless a defendant requests the issue
or objects to the omission of the issue from the jury charge). Consequently, there is
no error in the charge and the egregious harm standard does not apply.
B. Gao did not meet his burden to produce evidence of self-defense.
Even assuming Gao had requested a self-defense instruction, the trial court
would not have erred in denying it. A defendant has the burden of producing some
evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594
(Tex. Crim. App. 2003); Cleveland v. State, 177 S.W.3d 374, 380, (Tex. App.—
Houston [1st Dist.] 2005, pet. ref’d). Once the defendant produces that evidence, the
State then bears the burden of persuasion to disprove the raised defense. Zuliani, 97
S.W.3d at 594. Self-defense is a “confession and avoidance” defense. See Gamino,
537 S.W.3d at 511; Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007).
Gao was not entitled to a self-defense instruction unless he admitted to the conduct.
VanBrackle v. State, 179 S.W.3d 708, 715 (Tex. App.—Austin 2005, no pet.) (citing
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Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999)); see Gamino, 537
S.W.3d at 512 (explaining that to receive a self-defense instruction, defendant must
admit to the alleged conduct but does not necessarily need to admit to every element
of the charged offense). A defendant is not entitled to a self-defense instruction if he
claims, through either his testimony or the testimony of others, that he “did not
perform the assaultive acts alleged, or that he did not have the requisite culpable
mental state, or both.” VanBrackle, 179 S.W.3d at 715.
Gao was charged with intentionally, knowingly, or recklessly causing bodily
injury to Stephanie by grabbing her and shoving her head into the ground with his
hand and by kicking her with his leg. The record does not support that Gao
sufficiently admitted to committing the alleged conduct.1 Gao did not testify, nor did
any facts raised by the State’s witnesses demonstrate his admission of the assault.
See Lavern v. State, 48 S.W.3d 356, 360 (Tex. App.—Houston [14th Dist.] 2001,
pet. ref’d) (en banc) (“While a non-testifying defendant may be entitled to a charge
on self-defense, it is rare for the defense to be raised when the defendant fails to
testify.”); see also VanBrackle, 179 S.W.3d at 712 (“Defensive issues may be raised
1
Gao argues that his counsel argued self-defense in closing argument. Argument of
counsel is not evidence admitting the underlying conduct. See Motilla v. State, 38
S.W.3d 821, 824 (Tex. App.—Houston [14th Dist.] 2001 ) (acknowledging that
closing arguments are not evidence), rev’d on other grounds, 78 S.W.3d 352 (Tex.
Crim. App. 2002); Mata v. State, 1 S.W.3d 226, 228 (Tex. App.—Corpus Christi
1999, no pet.) (“[I]t is axiomatic that argument of counsel is not evidence.”).
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by the testimony of any witnesses, even those called by the State.”). But when, as
here, a defendant does not testify, there still must be some evidence of the
defendant’s subjective believe that force was immediately necessary to protect
himself. See TEX. PENAL CODE § 9.31 (“A person is justified in using force against
another when and to the degree the actor reasonably believes the force is
immediately necessary to protect the actor against the other’s use or attempted use
of unlawful force.”); see also Smith v. State, 676 S.W.2d 584, 585 (Tex. Crim. App.
1984) (“[T]o justify the submission of a charge to the jury on the issue of self-
defense, there must be some evidence in the record to show that the defendant was
in some apprehension or fear of being the recipient of the unlawful use of force from
the complainant.”).
The record does not support that on the night in question, Gao was in fear of
and responding to unlawful force from Stephanie. Deputy Schoppe testified that on
the night of the altercation, Gao denied fighting with Stephanie and later admitted
there may have been some physical contact. The jury also heard a recording of this
conversation. Both officers testified that as they approached the house, they could
hear an altercation and a woman in distress. Deputy Coleman testified that based on
the sounds he heard when trying to enter the house, he believed that a woman was
being assaulted. While Stephanie testified that she had hit Gao during their
relationship, she stated that she did so in incidents that occurred after May 2016.
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There was no evidence that she did so on the night in question such that Gao needed
to use force against her to defend himself. See TEX. PENAL CODE § 9.31. Since Gao
was not entitled to a self-defense instruction, even if he had brought the defense to
the court’s attention, the trial court would not have erred by omitting the instruction
from the jury charge.2
We overrule Gao’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice
2
Finally, we note that the jury found Gao guilty of assault causing bodily injury
family violence. The jury charge defined “family violence” as “an act by a member
of a family or household against another member of the family or household that is
intended to result in physical harm, bodily injury, assault, or sexual assault or that
is a threat that reasonably places the member in fear of imminent physical harm,
bodily injury, assault, or sexual assault, but does not include defensive measures to
protect oneself.” By finding him guilty, the jury implicitly decided that Gao’s
actions were not defensive measures to protect himself.
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Panel consists of Justices Kelly, Hightower, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
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